Rankin v. Evans

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 95-4744
_________________________
(District Court No. 91-8012-CIV-JAG)
DOUG RANKIN,
VICTORIA RANKIN,
Plaintiffs-Appellants,
Cross-Appellees,
versus
MARK EVANS, RICHARD WILLIE,
Sheriff of Palm Beach County,
PALM BEACH COUNTY SHERIFF’S
DEPARTMENT,
Defendants-Appellees,
Cross-Appellants.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
__________________________
(January 29, 1998)
Before BARKETT, Circuit Judge, KRAVITCH, Senior Circuit Judge,
and HARRIS*, Senior District Judge.
_____________________
*Honorable Stanley S. Harris, Senior U.S. District Judge for the
District of Columbia, sitting by designation.
HARRIS, Senior District Judge:
This case, like some others involving allegations of sexual
abuse of a child, inevitably evokes feelings of compassion for
all of the participants involved in the long-running dispute.
However, obviously the issues must be resolved dispassionately.
Plaintiff-appellant Doug Rankin was arrested in late
November of 1988 and charged with the sexual abuse of a child
under the age of twelve. Thereafter, not only did a grand jury
not indict him; it affirmatively found that he was “completely
innocent.” He and his wife, plaintiff-appellant Victoria Rankin,
brought an action against the arresting officer, Deputy Sheriff
Mark Evans, and the Palm Beach County Sheriff’s Department under
42 U.S.C. § 1983, and also made a state claim for false arrest.
At the conclusion of the evidentiary portion of the civil
trial, the district judge denied defendants’ motion for a
directed verdict and permitted the case to go to the jury, which
returned a substantial verdict for plaintiffs. Thereafter, upon
defendants’ motion, the district court set aside the verdict on
the ground that probable cause for Doug Rankin’s arrest and
detention had existed as a matter of law. That ruling is before
us, as is defendants’ cross-appeal of the district court’s
conditional denial of their motion for a new trial and its denial
of their motions for remittitur and to alter or amend the
judgment on the state count. We affirm the district court’s
grant of a JNOV and dismiss the cross-appeal as moot. (In light
of the cross-appeal, for clarity we often refer to the parties as
2
plaintiffs and defendants).
I. Factual History1
Plaintiffs Doug and Victoria Rankin owned and operated the
Sugar Plum School House, a pre-school program located in Lake
Worth, Florida. Dr. Martha Brake’s three-and-a-half-year-old
daughter Amber began attending Sugar Plum on November 7, 1988.
On November 21, 1988, Amber made a statement to her mother, who
is a child psychologist, indicating that she had been sexually
abused. Dr. Brake then made an audio tape of her daughter’s
statement in which the child again indicated that she had been
abused. That evening, Dr. Brake took her daughter to a
pediatrician, Dr. Drummond, to be examined for possible evidence
of abuse. During the examination, Dr. Drummond found physical
signs which were consistent with sexual abuse. The next morning,
Dr. Brake went to Amber’s prior school -- Victory Baptist -- and
played the tape in an attempt to get Amber readmitted to that
school. At approximately nine o’clock that morning, Dr. Brake
called the sheriff’s department to inform it that she had proof
that her daughter had been sexually molested. Deputy Mark Evans,
who was assigned to the case, called Dr. Brake and scheduled an
1
In analyzing the factual history, we have viewed all
facts in the light most favorable to plaintiffs and have drawn
all reasonable inferences in their favor. See Bailey v. Board of
County Comm’rs of Alachua County, 956 F.2d. 1112, 1119 (11th
Cir.), cert. denied, 113 S. Ct. 98 (1992). However, this
presumption in favor of plaintiffs does not apply where no jury
could reasonably conclude that the evidence supported a certain
factual finding or inference, despite minor conflicts in the
record. Id. (stating that a “mere scintilla of evidence does not
create a jury question; there must be a substantial conflict in
evidence to create a jury question”).
3
interview with her and Amber for that morning.
Deputy Evans and a representative from the Florida
Department of Health and Rehabilitation Services and Victim’s
Services (HRS) interviewed Dr. Brake while another officer
observed Amber. Dr. Brake informed Evans that: (1) Amber had
made a spontaneous statement to her which indicated that she had
been molested by a person named Ba Ba Blue; (2) she had heard
Amber refer to Doug Rankin as Ba Ba Blue on several occasions and
had never heard her refer to anyone else by that name; (3) a
teacher had informed her that children frequently called Doug
Rankin Baba Loo;2 (4) Doug Rankin worked at the school, Sugar
Plum, which Amber attended; (5) the only men who had had access
to Amber in the recent past were Rankin and one of Dr. Brake’s
coworkers; (6) she had seen Rankin on the playground with the
children; (7) Amber had attended Sugar Plum for about two weeks;
(8) Amber started exhibiting behavioral changes starting at the
end of her first week at the school;3 (9) Amber had used the age-
inappropriate term “boobies” in reference to her chest after
starting school at Sugar Plum; (10) Dr. Brake was so disturbed by
2
It is uncontested that Baba Loo was a nickname used for
Rankin by the children, and that Amber pronounced this name as Ba
Ba Brue or Ba Ba Blue. Accordingly, we use the term “Ba Ba Blue”
whenever we refer to Amber’s statements regarding Baba Loo. When
referring to another party’s independent use of the term, we use
the term “Baba Loo.”
3
Dr. Brake testified that she told Evans that Amber
initially enjoyed school, but that her behavior had changed
significantly by the end of the first week. She told Evans that
Amber had become more withdrawn, had indicated that she did not
want to go to school, had become more clingy, and had begun
having nightmares.
4
Amber’s behavioral changes that she tried to get her re-enrolled
at her prior school, Victory Baptist; (11) Dr. Brake saw Rankin
pick Amber up, and Amber hit him in response, on the day that
Amber made her initial statement indicating sexual abuse; (12) it
was unusual for Amber to strike an adult; (13) Dr. Brake had had
an argument with Rankin regarding what she considered to be
insufficient supervision of the children; (14) she had taken
Amber to be examined by Dr. Drummond (their pediatrician) the day
Amber made her initial statement, and he told Dr. Brake that
there was physical evidence consistent with abuse; and (15) a
colleague of hers who was also a child psychologist, Dr.
Decharme, had seen Amber on the evening of November 21, 1988, and
told Dr. Brake that Amber had indicated that she had been abused.
Dr. Brake also informed Evans that she had made an audiotape
of Amber’s recounting of her previous statement. Evans listened
to that tape. On it, Amber stated that Ba Ba Blue had made “a
hole in [her] bottom” and that he put “his fingers in [her]
bottom and it pinched and it feels bad.” She also indicated
that, after Ba Ba Blue was finished with her, he sent her to the
playground.
Officer Honholz, who had been with Amber during Evans’s
interview of her mother, informed Evans and Dr. Brake that Amber
made a statement to him regarding the abuse.
Deputy Evans then conducted a videotaped interview with
Amber in which she again indicated that a man at school named Ba
Ba Blue had abused her. Prior to identifying Ba Ba Blue as her
5
abuser, Amber named two cartoon characters in response to police
questioning regarding the identity of her abuser. Baba Loo is
the name of a cartoon character from a video the children watched
in school. Rankin used the term as a general nickname to refer
to the children. The children, including Amber, also referred to
Rankin by this nickname.
Amber also made several improbable or inconsistent
statements regarding the timing of the abuse. She indicated that
the abuser had used both his hand and a spoon, taken pictures of
her, touched her with his genitalia, and had been naked. She
also indicated that the abuse had happened both inside the school
and outside on some steps.
Deputy Evans telephoned Dr. Drummond regarding Amber’s
physical examination. Dr. Drummond told Evans that there were
several physical symptoms that could be the result of sexual
abuse: (1) a fresh abrasion; (2) an enlarged hymenal opening; and
(3) a healed notch on the hymen. Dr. Drummond indicated that the
first symptom could be consistent with improper sexual conduct
such as rubbing, but that there were other possible causes. Dr.
Drummond stated that the hymenal notch and the enlargement of the
area suggested some form of limited penetration -- possibly
digital. Dr. Drummond also noted that the notch to the hymen was
at least two to three weeks old.
On the morning of November 23, 1988, with the authorization
of his superiors, Evans went to Sugar Plum to arrest Doug Rankin
for sexual battery on a child under the age of twelve. Rankin
6
was not there. Evans did not inform anyone at the school of the
purpose of his visit, nor did he interview anyone at the school
regarding the alleged abuse. Instead, he returned several hours
later, when he had been informed Rankin would be present, at
which time he arrested Rankin.
During his subsequent interview with police, Rankin
repeatedly proclaimed his innocence and informed Evans that he
had never been alone with Amber (a fact that he asserted the
teachers could corroborate), that he was physically unable to fit
on or reach into the playground equipment on which the police
stated that the abuse occurred, that Baba Loo was the name of a
cartoon character, that he was not the only person at the school
who was called Baba Loo, and that Amber had attended the school
for only two weeks.
During his interview, Rankin also conceded that he was the
only male who worked at the school, that the children referred to
him as Baba Loo, that he had access to the entire schoolhouse,
and that he had been at school on November 21, 1988. He also
made numerous specific comments regarding Amber’s personality and
behavior during the two weeks she had been at school, even though
he stated that there were 120 students at the school and that he
had relatively little contact with the children. Furthermore, he
made progressively more critical comments regarding Dr. Brake as
the interview progressed.
Following the interrogation, Rankin formally was charged
with sexual battery of a child under the age of twelve pursuant
7
to Fla. Stat. 794.011(2). He subsequently was released on bond
with no opposition from Deputy Evans. A grand jury later
exonerated Rankin, specifically stating that he was “completely
innocent.”
II. Procedural History
Following those events, plaintiffs Doug Rankin and his wife
Victoria filed a complaint asserting both state and federal
claims. The claims resolved by the jury at trial were as
follows.4 Count I stated a claim pursuant to 42 U.S.C. § 1983alleging that defendant Mark Evans, as a Deputy Sheriff of Palm
Beach County, while acting under the color of state law, arrested
and seized plaintiff Doug Rankin without a warrant or probable
cause in violation of the Fourth and Fourteenth Amendments of the
United States Constitution. Count II alleged that defendant
Richard Wille, as Sheriff of the Palm Beach County Sheriff’s
Department, acting through its agents and employees, falsely
arrested and imprisoned plaintiff Doug Rankin.5 At trial,
4
It should be noted that Sheriff Richard Wille was
originally named as a defendant in Count I, but was dismissed
prior to trial. The Sheriff’s Department was named as a
defendant in both Counts I and II. However, summary judgment was
entered in the Department’s favor on Count I, and thus it
remained as a defendant only in Count II. Richard Wille
subsequently was substituted for the Palm Beach County Sheriff’s
Department in Count II. Accordingly, at trial, Deputy Mark Evans
was the defendant in Count I and Richard Wille, as the Sheriff,
was the defendant in Count II.
5
Although Count II alleges both false arrest and false
imprisonment, we refer to the claim as one for false arrest
because under Florida law “false arrest and false imprisonment
are different labels for the same cause of action.” Weissman v.
K-Mart Corp., 396 So.2d 1164, 1164 n.1 (Fla. 3d DCA 1981).
8
defendants made a motion for a directed verdict both at the close
of plaintiffs’ case and at the close of all evidence.6 At
neither time did defendants specifically state their grounds for
the motion for a directed verdict. The trial court denied both
motions, and the case went to the jury, which found defendants
liable on both counts.7
On January 4, 1995, defendants filed motions for a judgment
notwithstanding the verdict, for remittitur, to alter or amend
the judgment on the state count, and alternatively for a new
trial. Defendants based their motion for a JNOV on the asserted
existence of probable cause for the arrest.8 The motion also
6
We note that the 1991 Amendments to Rule 50 of the
Federal Rules of Civil Procedure changed the terminology used to
describe the relevant actions taken. Instead of using the term
“directed verdict” for a motion for a judgment as a matter of law
when the motion is made prior to the verdict, and the term
“judgment notwithstanding the verdict” when the motion is made
after the verdict is returned, Rule 50 now refers to both motions
as motions for a judgment as a matter of law. However, since one
issue on appeal turns on the timing of the motion for the
judgment as a matter of law, we use the older terms “directed
verdict” and “judgment notwithstanding the verdict” for
convenience and clarity.
7
The jury awarded Doug Rankin $1,000,000 for intangible
damages, damage to personal reputation, and loss of past income
and earning potential. Victoria Rankin was awarded $500,000 as
damages for loss of consortium. The Rankins also were awarded
$500,000 as business damages.
8
Plaintiffs contend that defendants failed properly to
raise probable cause as the ground for a JNOV on the § 1983 claim
because they did not assert that ground until their reply to
plaintiffs’ opposition to the motion for a JNOV. We reject this
argument.
On January 4, 1995 -- the date on which defendants’ motions
for a JNOV, for remittitur, to alter and amend the judgment on
the state claim, and for a new trial were filed -- defendants
also filed a motion for an extension of time in which to file
9
asserted that defendants were entitled to a JNOV on the § 1983
claim because plaintiffs failed to demonstrate that Deputy Evans
acted with deliberate or callous indifference to Doug Rankin’s
constitutional rights, as required to support a § 1983 claim. On
May 15, 1995, the district court granted defendants’ motion for a
JNOV on both the state and federal claims on the ground that
probable cause for Rankin’s arrest and detention existed and
constitutes an absolute bar to plaintiffs’ claims. The Order
also conditionally denied defendants’ motion for a new trial and
denied their other motions as moot.
Plaintiffs appeal the grant of a JNOV in favor of defendants
on both counts. Defendants appeal the conditional denial of the
motion for a new trial and the denial of their other motions as
moot.
III. Analysis
A. The Grant of a JNOV Was Not Procedurally Barred
addenda to those motions. Confusion as to the district court’s
position regarding this request for an extension of time prompted
the district court to treat defendants’ February 28, 1995, reply
to plaintiffs’ opposition as an addendum to defendants’ original
motion for a JNOV. See March 16, 1995, Order (detailing the
procedural history regarding this matter). The Order explicitly
stated that plaintiffs were entitled to respond pursuant to the
Local Rules to defendants’ February 28, 1995, submission.
Certainly, it was well within the district court’s discretion to
treat defendants’ reply as an addendum to its original motion in
an attempt to remedy any procedural confusion resulting from its
Orders. Accordingly, we reject the assertion by plaintiffs that
probable cause was not raised in defendants’ motion for a JNOV as
a ground for relief.
10
The first question we decide is whether the district court’s
grant of a JNOV in favor of defendants was procedurally barred.
The Rankins correctly assert that Federal Rule of Civil Procedure
50(b) requires that a party moving for a JNOV first must have
made a timely and proper motion for a directed verdict. See
Wilson v. Attaway, 757 F.2d 1227, 1237 (11th Cir. 1985). Federal
Rule of Civil Procedure 50(a)(2) states that such a motion “shall
specify . . . the law and the facts on which the moving party is
entitled to the judgment.” See also National Indus., Inc. v.
Sharon Steel Corp., 781 F.2d 1545, 1548 (11th Cir. 1986). The
Rankins note that defendants failed to state specifically any
ground for their motions for a directed verdict -- much less the
ground on which the Court later granted a JNOV, i.e., the
existence of probable cause. Therefore, the Rankins contend that
defendants’ motions for a directed verdict did not satisfy the
specificity requirement of Rule 50(a)(2), and that defendants’
motion for a JNOV should have been denied as technically
deficient. See, e.g., Piesco v. Koch, 12 F.3d 332, 340-41 (2d
Cir. 1993) (defendant’s motion for a directed verdict failed to
specify any grounds and thus was not sufficiently informative to
preserve defendant’s right to move for a JNOV); Purcell v. Seguin
State Bank & Trust Co., 999 F.2d 950, 956-57 (5th Cir. 1993)
(issue raised in a JNOV motion that was not specifically raised
in motion for a directed verdict at close of evidence held
waived); McCarty v. Pheasant Run, Inc., 826 F.2d 1554, 1555-56
(7th Cir. 1987) (same).
11
Defendants argue that a rigid application of Rules 50(b) and
50(a)(2) is inappropriate where motions for a directed verdict
were timely made and the judge and opposing counsel were aware of
the legal and factual bases of the motion despite the moving
party’s failure to state them explicitly. See, e.g., Stewart v.
Thigpen, 730 F.2d 1002, 1006-07 n.2 (5th Cir. 1984) (stating that
plaintiff’s failure specifically to identify the grounds for his
motion for a directed verdict did not preclude a JNOV in his
favor where the trial court and defendants had actual notice of
the basis of the motion); Clarke v. O’Connor, 435 F.2d 104, 113
n.15 (D.C. Cir. 1970) (concluding that although defendant’s
motion for a directed verdict did not explicitly assert the
applicability of the statutory provision on which a JNOV later
was based, it provided the court and opposing counsel with
sufficient notice to satisfy Rule 50). Defendants assert that
the trial court and opposing counsel were aware that defendants’
motions for a directed verdict were based upon the ground that
probable cause for Rankin’s arrest existed as a matter of law and
constituted an absolute defense to plaintiffs’ claims.
In support of this contention, defendants stress that it was
obvious throughout trial that the existence of probable cause was
the central issue in the case. Defendants note that on the day
before they made their motions for a directed verdict, they
submitted a trial memorandum briefing the issue of probable
cause. The trial judge referred to this memorandum and
specifically alluded to a probable cause case that was discussed
12
therein in denying defendants’ motion for a directed verdict at
the close of plaintiffs’ case. The trial judge subsequently
denied defendants’ motion for a directed verdict at the close of
all evidence “on the basis previously announced at the close of
the plaintiffs’ case in chief.” Accordingly, defendants argue,
since it was apparent to all involved that the existence of
probable cause was the basis for its motions for a directed
verdict, the district court did not err in granting defendants’
motion for a JNOV on that ground.
This Circuit has looked to the purpose of Rule 50(b) in
determining what constitutes a motion for a directed verdict
sufficient thereafter to support a JNOV. See National Indus.,
781 F.2d at 1549-50 (noting that where Rule 50(b)’s purpose --
providing notice to the court and opposing counsel of any
deficiencies in the opposing party’s case prior to sending it to
the jury -- has been met, the Circuit “ha[s] taken a liberal view
of what constitutes a motion for directed verdict”).9 See also
Scottish Heritable Trust v. Peat Marwick Main & Co., 81 F.3d 606,
9
The Rankins cite Austin-Westshore Constr. Co. v.
Federated Dep’t Stores, Inc., 934 F.2d 1217, 1222-23 (11th Cir.
1991), in support of their contention that Rules 50(b) and
50(a)(2) should be strictly applied to bar the grant of a JNOV in
this case. In Austin, however, the ground on which the motion
for a JNOV was based had never been raised at trial. Thus, the
trial court could not rely upon the standard articulated in
National Industries in support of a grant of a JNOV because
opposing counsel and the trial court did not have actual notice
as to any “flaw” in the case prior to sending it to the jury.
Unlike in Austin, the grant of a JNOV in this case is justified
by the fact that the moving parties substantially complied with
the requirements of Rules 50(a)(2) and (b) because the court and
opposing counsel unquestionably had actual notice at trial of the
ground upon which the JNOV ultimately was granted.
13
610 (5th Cir.) (stating that “[t]echnical noncompliance with Rule
50(b) may be excused in situations in which the purposes of the
rule are satisfied”), cert. denied, 117 S. Ct. 182 (1996);
Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691
(3rd Cir. 1993) (concluding that defendants’ motions for a
directed verdict were sufficient to support a JNOV where the
court and opposing counsel had actual notice of the basis of the
motion even though it was only implicitly raised by defendants’
motions). A party is obliged to make a motion for a directed
verdict at the close of the evidence as a prerequisite to a
motion for JNOV to ensure that neither the court nor the opposing
party is “lulled into complacency” concerning the sufficiency of
the evidence. National Indus., 781 F.2d at 1549. See also
Scottish Heritable, 81 F.3d at 610 (stating that “the two basic
purposes of [Rule 50(b)] are ‘to enable the trial court to re-
examine the question of evidentiary sufficiency as a matter of
law if the jury returns a verdict contrary to the movant, and to
alert the opposing party to the insufficiency before the case is
submitted to the jury’”) (internal citation omitted). Requiring
a motion for a directed verdict prior to submitting the case to
the jury ensures that the court and the opposing party will be
alerted to any sufficiency problems at a stage when such
deficiencies might be remedied.
The same purpose underlies the specificity requirement of
Rule 50(a)(2). Accordingly, where the trial court and all
parties actually are aware of the grounds upon which the motion
14
is made, strict enforcement of the specificity requirement of
Rule 50(a)(2) is unnecessary to serve the purpose of the rule.
The record shows that the trial court and plaintiffs’
counsel were aware that the asserted existence of probable cause
formed the basis of defendants’ motions for a directed verdict.
That issue was the central question in the case; defendants
submitted a trial memorandum on that issue on the day prior to
making their motions for a directed verdict; and the trial judge
referred to that memorandum, and more specifically to a
particular probable cause case, in making his rulings on
defendants’ motions for a directed verdict. Accordingly, we
conclude that defendants’ motions for a directed verdict were
sufficient to support their subsequent motion for a JNOV.
B. Probable Cause as the Ground for the Entry of a JNOV
1. The Relevance of the Arresting Officer’s
Subjective Belief in the Arrestee’s Guilt to the
Existence of Probable Cause
We now turn to plaintiffs’ argument that Florida law
requires an arresting officer to believe subjectively in the
guilt of an arrestee in order to have probable cause for the
arrest. Under this view of the law, the Rankins contend that a
reasonable jury could have concluded that Deputy Evans did not
subjectively believe in Rankin’s guilt and, thus, that he did not
have probable cause to arrest Rankin. They further argue that
such an arrest would have exceeded state authority, thus
violating Rankin’s Fourth Amendment rights and rendering
15
defendants liable for that violation pursuant to 42 U.S.C. §
1983. Defendants counter that no such subjective belief
requirement exists under Florida law. We conclude that neither
Florida nor federal law requires that a police officer actually
have a subjective belief in the guilt of the person arrested.
This Circuit has concluded that the standard for determining
the existence of probable cause is the same under both Florida
and federal law -- whether “‘a reasonable man would have believed
[probable cause existed] had he known all of the facts known by
the officer.’” United States v. Ullrich, 580 F.2d 765, 769 (5th
Cir. 1978) (quoting State v. Outten, 206 So. 2d 392, 397 (Fla.
1968)).10 See also United States v. McDonald, 606 F.2d 552, 553
n.1 (5th Cir. 1979) (per curiam) (stating that “Florida’s
standard of probable cause for a lawful arrest is the same as
that required by the Fourth Amendment”); Wright v. State, 418 So.
2d 1087, 1094 (Fla. 1st DCA 1982) (concluding that the Florida
standard for probable cause is no more restrictive than the
federal standard and is in effect a mirror image of that
standard). Furthermore, prior to its adoption of the proposition
that the state and federal probable cause standards are
identical, this Circuit explicitly rejected the idea that the
subjective belief of the arresting officer is relevant to the
determination of whether probable cause exists. See United
10
All decisions issued by the former Fifth Circuit prior
to October 1, 1981, have been adopted as binding precedent for
the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc).
16
States v. Clark, 559 F.2d 420, 425 (5th Cir.) (stating that “even
if the officers felt that probable cause was lacking, an
objective standard would still be applicable”), cert. denied, 98
S. Ct. 516 (1977); United States v. Resnick, 455 F.2d 1127, 1132
(5th Cir. 1972) (concluding that probable cause existed and “the
scope of the Fourth Amendment is not determined by the subjective
conclusion of the law enforcement officer”).11 Finally, relying
11
We here address plaintiffs’ citation of several
decisions which they contend establish that an officer must
subjectively believe that a crime has been committed and that the
suspect committed it in order for probable cause to exist. See
Spicy v. City of Miami, 280 So. 2d 419, 421 (Fla. 1973) (stating
that an officer “must have . . . ‘substantial reason’ and must
‘believe’ from observation and evidence at the point of arrest”
that the person was guilty); Osborne v. State, 100 So. 365, 366
(Fla. 1924) (officer has probable cause to arrest “any person
whom such officer has reasonable ground to believe, and does
believe, has committed any felony”); City of Hialeah v. Rehm, 455
So. 2d 458, 461 (Fla. 3d DCA 1984) (reversing a directed verdict
in favor of defendant on false arrest and imprisonment claims,
because “jury issues were presented as to a) whether, when he
placed [the suspect] under arrest, [the arresting officer] in
fact himself believed that the offense . . . had been committed .
. . ; and b) whether, if so, there was a reasonable basis for
that belief in the circumstances he observed”); Donner v.
Heatherington, 399 So. 2d 1011, 1012 (Fla. 3d DCA 1981) (same).
We note that Osborne and Spicy were decided prior to the
Eleventh Circuit authority described in the text above which
rejects the proposition that there is a subjective element to a
probable cause analysis. We must therefore presume that this
Circuit considered Osborne and Spicy in the decisions which
collectively rejected that proposition. We are bound by this
precedent because “a prior decision of the circuit (panel or en
banc) [cannot] be overruled by a panel but only by the court
sitting en banc.” Bonner, 661 F.2d at 1209.
Both Donner and Rehm, which are state appellate-level
decisions decided after the referenced Eleventh Circuit
authority, cite Spicy as their sole authority for the proposition
that there is a subjective element to the state probable cause
analysis. Donner, 399 So. 2d at 1012; Rehm, 455 So. 2d at 461.
As noted, this Circuit has concluded that Spicy does not stand
for the proposition for which plaintiffs cite it.
17
on its own precedent dating back to 1973, the Supreme Court
recently stated: “Subjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis.”12 Whren v. United
However, even if we were not so bound, we would not conclude
that the cases cited by plaintiffs establish that there is a
subjective element to the probable cause analysis under Florida
law. Our research indicates that no other Florida appellate
jurisdiction has joined the Third District’s adoption of an
explicit two-part probable cause analysis requiring an officer
subjectively to believe that probable cause exists and have a
reasonable basis for that subjective belief. The other
jurisdictions appear to rely on an objective standard: probable
cause exists when ”the totality of the facts and circumstances
within the officer’s knowledge would cause a reasonable person to
believe that an offense has been committed and that the defendant
is the one who committed it.” Revels v. State, 666 So. 2d 213,
215 (Fla. 2d DCA 1995); see also Florida Game and Freshwater Fish
Comm’n v. Dockery, 676 So. 2d 471, 474 (Fla. 1st DCA 1996);
Millets v. State, 660 So. 2d 789, 791 (Fla. 4th DCA 1995);
LeGrand v. Dean, 564 So. 2d 510, 512 (Fla. 5th DCA 1990). But
see LeGrand, 564 So. 2d at 513 (Griffin, J., specially
concurring) (citing Donner and Spicy for the proposition that an
officer must “actually have a belief that a crime was committed
and that the people he proposes to arrest perpetrated the
crime”). Finally, the Florida Supreme Court again defined the
test for probable cause in objective terms after Donner. See
Blanco v. State, 452 So. 2d 520, 523 (Fla. 1984) (“The probable
cause standard for a law enforcement officer to make a legal
arrest is whether the officer has reasonable grounds to believe
the person has committed a felony.”), cert. denied, 105 S. Ct.
940 (1985). Thus, Donner and Rehm do not represent any
significant shift in Florida law that would affect this Circuit’s
conclusion that the subjective belief of the arresting officer
plays no role in a probable cause analysis under either Florida
or federal law.
12
The Court also stated: “Not only have we never held,
outside the context of inventory search or administrative
inspection . . . , that an officer’s motive invalidates
objectively justifiable behavior under the Fourth Amendment; but
we have repeatedly held and asserted the contrary.” Whren, 116
S. Ct. at 1774; see also United States v. Villamonte-Marquez, 103
S. Ct. 2573, 2577 n.3 (1983) (rejecting the contention that an
ulterior motive might strip officers of their legal justification
for an otherwise lawful warrantless boarding of a ship); Scott
v. United States, 98 S. Ct. 1717, 1723 (1978) (rejecting the
contention that the Fourth Amendment required the exclusion of
certain wiretap evidence and and accepting the government’s
18
States, 116 S. Ct. 1769, 1774 (1996). Thus, when this Circuit
concluded that state and federal probable cause standards are
identical, it was clearly established under federal law that
there was no subjective belief requirement. No subjective belief
requirement exists under either state or federal law.13
2. The Existence of Probable Cause
The Rankins assert that the trial court erred in granting a
JNOV in favor of defendants because a reasonable jury could have
concluded that the arresting officer, Deputy Evans, did not have
probable cause to arrest or detain Doug Rankin. Defendants
contend that the trial court was correct in ruling that Evans had
probable cause to arrest Rankin as a matter of law. We conclude
that probable cause to arrest Rankin existed as a matter of law,
and, accordingly, we affirm the trial court’s grant of a JNOV in
favor of defendants.
position that “[s]ubjective intent alone . . . does not make
otherwise lawful conduct illegal or unconstitutional”); United
States v. Robinson, 94 S. Ct. 467 (1973) (characterized by Scott,
98 S. Ct. at 1723, as holding that “the fact that the officer
does not have the state of mind which is hypothecated by the
reasons which provide the legal justification for the officer’s
action does not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action”).
13
Plaintiffs also cite Tillman v. Coley, 886 F.2d 317, 321
(11th Cir. 1989), as providing support for the existence of a
subjective element to the probable cause analysis. In that case
we concluded that a reasonable officer would investigate serious
doubts regarding the identity of a suspect prior to arrest, and
held that no “reasonable law enforcement officer may conclude
that . . . an arrest [may be] made for the sole purpose of
identifying a suspect.” Id. Plaintiffs’ use of this limited
holding in support of a subjective belief requirement is
unpersuasive in light of Eleventh Circuit and Supreme Court
precedent.
19
In determining whether a JNOV was properly granted, we apply
the same standard as the district court. Carter v. City of
Miami, 870 F.2d 578, 581 (11th Cir. 1989). Resolving all the
factual disputes and drawing all logical inferences in favor of
the nonmoving party, we determine whether these facts and
inferences so strongly favor one party “that reasonable people,
in the exercise of impartial judgment, could not arrive at a
contrary verdict.” Bailey v. Board of County Comm’rs of Alachua
County, 956 F.2d 1112, 1119 (11th Cir.), cert. denied, 113 S. Ct.
98 (1992). If so, the motion was properly granted. We must also
keep in mind, however, that a “mere scintilla of evidence does
not create a jury question; there must be a substantial conflict
in evidence to create a jury question.” Id.As noted, the trial court granted a JNOV in favor of
defendants on the ground that the arresting officer had probable
cause to arrest Rankin as a matter of law. Since probable cause
constitutes an absolute bar to both state and § 1983 claims
alleging false arrest, the remaining question for us to address
is whether the trial court correctly concluded that probable
cause did exist as a matter of law. Ortega v. Christian, 85 F.3d
1521, 1525 (11th Cir. 1996) (probable cause constitutes an
absolute bar to a § 1983 claim alleging false arrest); Bolanos v.
Metropolitan Dade County, 677 So. 2d 1005, 1005 (Fla. 3d DCA
1996) (“[P]robable cause is a complete bar to an action for false
arrest and false imprisonment.”) (per curiam). Accordingly, “we
. . . must evaluate [the] facts and inferences according to the
20
legal standard for probable cause.” Bailey, 956 F.2d. at 1119.
As has been discussed, the standard for determining whether
probable cause exists is the same under Florida and federal law.
McDonald, 606 F.2d at 553 n.1. In order for probable cause to
exist, “an arrest [must] be objectively reasonable under the
totality of the circumstances.” Bailey, 956 F.2d at 1119; see
also State v. Scott, 641 So. 2d 517, 519 (Fla. 3d DCA 1994).
This standard is met when “the facts and circumstances within the
officer’s knowledge, of which he or she has reasonably
trustworthy information, would cause a prudent person to believe,
under the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.” Williamson v.
Mills, 65 F.3d 155, 158 (11th Cir. 1995); see also Elliott v.
State, 597 So. 2d 916, 918 (Fla. 4th DCA 1992). “Probable cause
requires more than mere suspicion, but does not require
convincing proof.” Bailey, 956 F.2d at 1120; see also Scott,
641 So. 2d at 519 (“[T]he facts necessary to establish probable
cause need not reach the standard of conclusiveness and
probability as the facts necessary to support a conviction.”).
In determining whether probable cause exists, “‘we deal with
probabilities . . . [which] are the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.’” Revels, 666 So. 2d at 215(quoting Illinois v. Gates, 103 S. Ct. 2317, 2328 (1983)).
An arresting officer is required to conduct a reasonable
investigation to establish probable cause. See Tillman, 886 F.2d
21at 321; see also Harris v. Lewis State Bank, 482 So. 2d 1378,
1382 (Fla. 1st DCA 1986) (“Where it would appear to a ‘cautious
man’ that further investigation is justified before instituting a
proceeding, liability may attach for failure to do so, especially
where the information is readily obtainable, or where the accused
points out the sources of the information.”). An officer,
however, need not take “every conceivable step . . . at whatever
cost, to eliminate the possibility of convicting an innocent
person.” Tillman, 886 F.2d at 321; see also State v. Riehl, 504
So. 2d 798, 800 (Fla. 2d DCA 1987) (“In order to establish the
probable cause necessary to make a valid arrest, . . . it is not
necessary to eliminate all possible defenses.”). Furthermore,
once an officer makes an arrest based upon probable cause, he
“need not ‘investigate independently every claim of innocence.’”
Tillman, 886 F.2d at 321 (internal citation omitted). Probable
cause is “judged not with clinical detachment but with a common
sense view to the realities of normal life.” Marx v. Gumbinner,
905 F.2d 1503, 1506 (11th Cir. 1990) (internal citation omitted);
see also Revels, 666 So. 2d at 215.
The only difference in the probable cause analysis
applicable to the state and federal claims at issue here is which
party carried the burden of proving whether probable cause
existed. The existence of probable cause constitutes an
affirmative defense to the claims of false arrest and
imprisonment under Florida law. See Bolanos, 677 So. 2d at 1005(probable cause bars a state claim for false arrest or false
22
imprisonment); DeMarie v. Jefferson Stores, Inc., 442 So. 2d
1014, 1016 n.1 (Fla. 3d DCA 1983) (“[T]he existence of probable
cause is a part of the defense to a false arrest action which
must be shown by the defendant.”). Accordingly, defendants had
the burden of demonstrating the existence of probable cause as a
defense to the state claim. However, plaintiffs had the burden
of demonstrating the absence of probable cause in order to
succeed in their § 1983 claim. Evans v. Hightower, 117 F.3d
1318, 1320 (11th Cir. 1997) (“In order to establish a Fourth
Amendment violation, [plaintiff] must demonstrate that a seizure
occurred and that it was unreasonable.”); see also Rivas v.
Freeman, 940 F.2d 1491, 1496 (11th Cir. 1991) (“To successfully
litigate a lawsuit for deprivation of constitutional rights under
42 U.S.C. section 1983, a plaintiff must show violation of a
constitutionally protected liberty or property interest and
deliberate indifference to constitutional rights.”). We conclude
that probable cause existed as a matter of law and that the
existence of such probable cause defeats both the federal and
state claims.
The Rankins first assert that the evidence on which Deputy
Evans relied in making the arrest either exonerated Doug Rankin
or was not sufficiently trustworthy or reliable to support a
finding of probable cause. They assert that the medical evidence
of which Evans was aware compelled the conclusion that Rankin was
not Amber’s abuser because it suggested that the charged conduct
had occurred prior to Rankin’s first contact with the child.
23
They also contend that the physical evidence exonerated Rankin
because he could not physically have committed the acts of which
he was accused in the location identified by the victim.
Additionally, the Rankins contend that Rankin’s lack of access to
Amber defeated probable cause for his arrest, especially in light
of the fact that Evans knew that another male, one of Dr. Brake’s
coworkers, had had access to Amber during a time frame consistent
with the medical evidence suggesting penetration.
The Rankins also contend that Evans should not have relied
on Amber’s or Dr. Brake’s statements about possible abuse when
determining probable cause. They claim that Amber’s statements
regarding abuse were unreliable because of: (1) her age; (2)
inconsistencies regarding the identity of the abuser, the number
of times the abuse occurred, and the location and timing of the
abuse; (3) the possibility that Dr. Brake, a child psychologist,
concocted the story that Amber spontaneously told her about the
abuse and that Dr. Brake’s coaching resulted in Amber’s
subsequent statements; and (4) the possibility that the police
officers’ questions during their interview with Amber led her
into making statements that she would not otherwise have made.
They further contend that Evans should have viewed Dr. Brake’s
statements with considerable skepticism because he should have
known that Dr. Brake was biased against Rankin due to their
argument regarding the school’s supervision of the children under
its care. They also seem to suggest that Evans should have
considered the possibility that either Dr. Brake or somebody she
24
was protecting committed the abuse. Accordingly, they conclude
that Evans should have placed little weight on Dr. Brake’s
comments regarding Amber’s behavior and statements.
Finally, the Rankins argue that, at the very least, the
information available to Evans at the time of the arrest should
have created doubts as to the existence of probable cause and
should have prompted further investigation. The Rankins claim
that Evans should have examined the playground equipment to
determine whether Rankin could have abused Amber on the steps of
that equipment as her statements indicated. They also argue that
Evans should have interviewed the teachers regarding Amber’s
behavior at school and Rankin’s degree of access to Amber.
Although the Rankins contend that this investigation should have
been done prior to arresting Rankin, they further assert that it
certainly should have been done after Rankin raised concerns
regarding these issues during his interview with the police.
Plaintiffs contend that such additional investigation was
especially important here because time was not of the essence in
making an arrest since the school was going to be closed over the
Thanksgiving holidays, limiting Rankin’s access to the children.
Defendants counter that Evans’s conclusion that probable
cause existed to arrest Rankin was well-supported by the evidence
available to him at the time of Rankin’s arrest and detention.
Defendants note that Evans interviewed Amber, Dr. Brake, and Dr.
Drummond, all of whom provided information supporting the
conclusion that Rankin had abused Amber.
25
Defendants also contend that Evans’s interviews with Amber
and her mother, his conversation with Dr. Drummond, and his
interrogation of Rankin in which Rankin made several damaging
statements constituted a reasonable investigation and provided
trustworthy and reliable information from which he could conclude
that probable cause existed both at the time of arrest and during
Rankin’s subsequent detention. They further contest plaintiffs’
assertion that time was not of the essence in making the arrest.
They note that had Rankin not been arrested on the morning of
November 23, he would have had access to the children at the
school for the entire day.
We conclude that the investigation conducted by Evans was
reasonable and that the evidence on which he based his decision
to arrest Rankin was sufficient to create probable cause as a
matter of law. We also conclude that the statements made by
Rankin after his arrest did not defeat the existence of probable
cause or necessitate immediate further investigation.
a. The Medical Evidence
We now address plaintiffs’ assertion that the medical
evidence available to Evans precluded the existence of probable
cause to arrest Rankin for the crime with which he was charged.
The Rankins note that penetration is an element of the crime of
sexual abuse of a child under twelve. See § 794.011 Fla. Stat.
(1987). Resolving all factual disputes in favor of the
plaintiffs, we must conclude that Evans knew that the injury
suggesting such penetration had been incurred at least two weeks
26
before the date of Dr. Drummond’s examination and that Evans knew
that Amber had attended Sugar Plum for just two weeks. We also
must conclude that Dr. Brake told Evans that Amber had told her
that abusive behavior had occurred on November 21, 1988, a date
which seemingly conflicts with the medical evidence that
penetration (if only partial) had occurred at least two weeks
prior to that date.14 Accordingly, the question to be answered
is whether a prudent person faced with such information could
reasonably have believed that Rankin committed the offense.
In addition to that information, however, Deputy Evans also
knew that Amber had sustained a fresh abrasion within 24 hours of
the November 21, 1988, medical examination which could have been
caused by a fingering of the genital area. During her videotaped
interview, Amber indicated that abusive incidents occurred on
more than one occasion. Thus, Amber’s statements and the medical
evidence both suggested that more than one instance of abuse
occurred, and a prudent officer reasonably could have concluded
that a single individual, rather than two separate individuals,
was responsible for the alleged abuse. Furthermore, an officer
reasonably could have concluded that Rankin was that individual.
14
The parties disputed this at trial. Evans testified
that Dr. Brake told him that the date on which Amber told her
about the incident with Ba Ba Blue was November 21, but that Dr.
Brake gave him a time frame of November 7 to November 21 during
which the actual incident or incidents of abuse could have
occurred. Plaintiffs confronted Evans at trial with his arguably
conflicting deposition testimony in which he indicated that Dr.
Brake told him that Amber said that the abuse occurred on
November 21, 1988. In light of this conflicting evidence, we
must accept plaintiffs’ assertion as true.
27
Evans knew that Amber consistently had called her alleged
abuser Ba Ba Blue and repeatedly linked the alleged abuse to the
school. He knew that Rankin was the only person whom Amber
called by that name. Amber repeatedly referred to her abuser as
a “he,” and Dr. Brake told Evans that Rankin was the only male
who had access to Amber during the approximately two-week period
which was consistent with all of the medical evidence.15 Dr.
Brake also informed Deputy Evans that, after Amber started school
at Sugar Plum, her behavior and language had changed in ways
which Evans knew to be consistent with sexual abuse.
Plaintiffs assert that even if the abuse could have occurred
on the first day on which Amber attended Sugar Plum, which would
have placed the incident involving penetration within a time
frame consistent with Rankin’s guilt, Evans knew that Amber had
stated that abuse had occurred on November 21, 1988, which was
clearly inconsistent with the medical time frame for the act of
penetration. However, the relevant question is whether a prudent
officer reasonably could have believed that Rankin committed the
offense in light of the medical evidence suggesting that any
penetration had to have happened significantly before November
15
Amber attended Sugar Plum for two weeks, and Dr.
Drummond indicated that the injury suggesting penetration was at
least two weeks old. Thus, accepting as true that Evans knew of
Dr. Drummond’s time line, an overlap of approximately a day
existed during which a cautious officer reasonably could have
concluded that Rankin could have committed the charged offense.
We further note that an officer reasonably could have concluded
that the time frame given by the doctor was an estimate and not
necessarily a strict cut-off point, thus possibly expanding the
window of opportunity by a reasonable period of time.
28
21, 1988, and Dr. Brake’s statement that Amber indicated that the
abuse occurred on November 21, 1988.
In light of the evidence suggesting multiple incidents of
abuse, a prudent officer reasonably could have believed that, in
recounting her story to her mother, Amber might not have
distinguished between penetration and simple fingering or
rubbing. Thus, in recounting the abuse she could have conflated
the incidents or confused the dates, or, in talking to her
mother, she could have been referring to the conduct which may
have resulted in the abrasion. A cautious officer, therefore,
reasonably could have believed that multiple incidents of abuse
occurred and that the abuse with which Rankin was charged
occurred within the first few days of school -- which was within
the medically permissible time frame. Accordingly, a reasonable
jury could not have concluded that the medical evidence defeated
probable cause to arrest Rankin.
b. Access
The Rankins next assert that, even if the medical evidence
does not conclusively defeat probable cause, Rankin’s lack of
access to Amber while she was at school does. They contend that,
had Evans interviewed any of the teachers before arresting
Rankin, he would have realized that Rankin was never alone with
Amber and, thus, could not have abused her. Plaintiffs further
note that it is uncontested that Rankin informed Evans of his
lack of access to Amber during questioning after he was arrested.
They thus contend that Evans knew or should have known that
29
Rankin was never alone with Amber and that he therefore lacked
the opportunity to have committed the crime charged.
Defendants counter that Deputy Evans knew that Rankin was
present at the school during the relevant time frame and that he
moved freely throughout the school. Evans also knew that Dr.
Brake had observed what she perceived to be a lack of adequate
supervision of the children. Finally, defendants contend that a
reasonable officer could have concluded that the abuse -- partial
penetration by a finger and rubbing of Amber’s genitalia -- could
have occurred with others in the room if the abuser had his body
between any other adult and the child and he simply slipped his
hand down the front of Amber’s pants or skirt.16
Additionally, the teachers whom Rankin argues that Evans
should have interviewed were employed by Rankin and thus would
16
The Rankins note that, in Amber’s videotaped interview,
she indicated that Ba Ba Blue touched her with both a finger and
a plastic spoon. The Rankins assert that a reasonable officer
could not possibly believe that Rankin could penetrate Amber with
a spoon with other adults in the same room, since such an action
undoubtedly would have been painful and caused Amber to make some
sort of outcry. However, a cautious officer could have
reasonably concluded that the facts available to him at the point
of arrest supported at least Amber’s contention that Rankin
digitally penetrated her. Although further investigation may
have been required in order to determine whether the spoon
incident could be verified, a reasonable officer could conclude
that he had sufficient evidence to proceed on the digital
penetration allegation and that time was of the essence
considering Rankin’s position as the owner of a day care center.
Furthermore, a prudent officer could reasonably conclude that
Amber’s statements regarding digital penetration -- which she
made on several separate occasions and stated in her own words --
were more reliable than her single reference to possible
penetration by a spoon -- which she referred to only in response
to a question by Evans.
30
have been of questionable credibility.17 A cautious officer
certainly could have reasonably concluded that, even if the
teachers were to have stated that Rankin had no access to Amber,
such testimony would be so undercut by the witnesses’ bias in
favor of their employer and their own self-interest in asserting
that they were always aware of Amber’s movements -- such
supervision being one of their job responsibilities -- that it
would not defeat the existence of probable cause in light of the
other evidence suggesting Rankin’s guilt. Finally, interviewing
those witnesses prior to picking up Rankin might have alerted him
to his possible arrest and, conceivably, precipitated his flight.
In light of all of these considerations, a reasonable jury could
not have concluded that a prudent officer could not have
reasonably believed that Rankin had sufficient access to Amber to
have committed the crime charged.
The Rankins further assert that the physical evidence
contradicted Amber’s account of events and that those
contradictions defeated probable cause. The Rankins argue that
Amber’s contention that she was abused by Ba Ba Blue on the steps
of playground equipment at the school simply could not have been
true because Rankin physically could not have performed the
actions she described at that location. They contend that a
17
Rankin also asserts that one of the teachers would have
told Evans that she saw Amber rubbing her vagina on November 21.
However, we note that a prudent officer who had such information
reasonably could have believed that a child would not have rubbed
herself so hard as to cause an abrasion. Thus, such information,
even had it been credible and had Evans known it, would not have
defeated the existence of probable cause.
31
reasonable jury could have concluded that the playground
equipment steps were too small for a man of Rankin’s size to
enter and that the slats on the sides of the equipment were too
narrow to permit him to reach into the equipment from the
outside. The Rankins also assert that a reasonable jury could
have determined that Evans did not examine the playground
equipment to determine whether Amber’s account of the abuse was
consistent with the physical evidence. Assuming this have been
true, the question is whether a prudent officer reasonably could
have believed, in light of all the evidence known to him, that
Rankin was guilty of sexually abusing Amber.
We conclude that a cautious officer reasonably could have
believed that, even if Amber’s story was inaccurate as to the
precise location of the abuse, the core of her story regarding
the abuse and the identity of the abuser was trustworthy and
reliable, especially in light of the medical and other evidence
corroborating her story. See Easton v. City of Boulder, 776 F.2d
1441, 1449-50 (10th Cir. 1985), cert. denied, 107 S. Ct. 71(1986).
Furthermore, a prudent person reasonably could have believed
that the abuse happened in the approximate area of the playground
equipment, if not actually on it. Amber stated on the audiotape
that, after Ba Ba Blue made “a hole in [her] bottom,” he put her
“back on the playground.” In the videotaped interview, she said
that the abuse took place outside the school. In response to a
question from Evans asking whether it was on the playground, she
32
said “yeah.” In response to the question of whether it was on a
piece of a toy, she said “no.” She said that the incident took
place on the steps. Interpreting the physical evidence in light
of the statements by the victim, it would not be unreasonable for
a prudent person to conclude that a three-and-a-half-year-old
might either unclearly articulate the location of the abuse or
conflate the idea of being put back on the playground after being
abused with the idea of where the abuse actually occurred.
Additionally, since Amber did not actually state that the abuse
occurred on the steps of the playground equipment, there is no
reason why a reasonable officer would have to have concluded that
Rankin’s inability to commit the alleged act on the playground
equipment obviated probable cause. Finally, we note that Amber
stated that the abuse occurred both inside and outside the
schoolhouse, so the fact that Rankin apparently could not have
abused Amber on the playground equipment does not affect the
possibility that he abused her in the schoolhouse. In light of
all of the evidence, we conclude that a reasonable jury could not
have concluded that Rankin’s alleged lack of access to Amber
defeated probable cause.
c. The Victim’s Statements
Next, we address the Rankins’ contentions that the only
information available to Deputy Evans suggesting that Rankin was
the perpetrator of any abuse ultimately was based upon statements
made by Amber, and that those statements were not sufficiently
reliable and trustworthy to support the existence of probable
33
cause. Defendants contend not only that Amber’s statements were
sufficiently reliable and trustworthy to support probable cause,
but also that Evans was prohibited from simply disregarding such
statements based upon the age of the victim. We conclude that
evidence other than Amber’s statements supported the conclusion
that Rankin likely was the perpetrator of the charged conduct.
We also conclude that Evans was entitled to rely to a meaningful
degree on Amber’s statements in determining the existence of
probable cause, and that those statements supported probable
cause.
As noted, Amber’s statements did not constitute the only
evidence suggesting that Rankin was the person who had abused
her. The medical evidence was consistent with two separate
episodes of abuse -- partial penetration which dated back at
least two weeks prior to November 21, and either rubbing or
fingering of the genitalia which occurred within 24 hours of Dr.
Drummond’s examination of Amber. Dr. Brake indicated to Evans
that she and the school staff were the only people with access to
Amber during the two-week period covering both potential
incidents of abuse.
Furthermore, a cautious person reasonably could have
believed that Dr. Brake was unlikely either to have been the
abuser or to have been protecting someone else whom she knew to
be the abuser since she -- at a point at which no one else knew
that any abuse might have occurred -- told a friend that she
thought that Amber had been abused, took her to a pediatrician to
34
have her examined for abuse, and promptly informed the police of
the suspected abuse. A prudent person reasonably could have
concluded that one who was guilty of, or complicit in, abusive
conduct would not spontaneously decide aggressively to volunteer
information to people in a position to take prosecutorial action
regarding potential abuse and insist that such action be taken.
Thus, having concluded that Dr. Brake was unlikely to have
been responsible for the alleged abusive incidents, a cautious
person reasonably could have believed that the perpetrator was
someone at the school.18 This conclusion was further supported
by Dr. Brake’s statement that Amber started exhibiting behavioral
changes within a week of beginning her attendance at Sugar Plum.
These behavioral changes included unusual clinginess, an abnormal
aversion to attending school, and atypical shyness. A seasoned
officer reasonably could have concluded that these behavioral
changes were consistent with sexual abuse and linked that abuse
to the school.19
18
Although Evans knew that a male coworker of Dr. Brake’s
had had access to Amber approximately three weeks prior to the
medical examination, that person had not had access to her during
the two-week period potentially covering the occurrences
resulting in both the damage to the hymen and the fresh abrasion.
19
The Rankins contend that if Evans had interviewed the
teachers, they would have told him that Amber exhibited no
behavioral changes, appeared to be happy at school, and even
started to misbehave at the end of the day when she had to leave
school. However, a cautious officer reasonably could have
concluded that any potential statements by the teachers regarding
Amber’s behavior would not have been particularly probative
considering their limited experience with Amber, particularly in
light of the fact that her mother, who clearly knew her very
well, indicated that such changes had occurred.
35
Having narrowed the class of likely suspects to the school
house, information provided by Dr. Brake suggested that Rankin
was the guilty party. Dr. Brake told Evans that, on the day
Amber informed her of the abuse, she saw Rankin pick up Amber and
that Amber hit him. A prudent officer reasonably could have
found this information to be relevant to the probable cause
determination in two ways: (1) as Evans testified, an abuser
often shows a special interest in a child whom he is abusing, and
Rankin’s particular attention to Amber in a class of a class of
approximately 120 might indicate such a special interest; and (2)
the hostility Amber demonstrated towards Rankin by striking him
was not typical of her behavior towards adults, as indicated by
her mother, suggesting that Rankin had done something to prompt
such a reaction.
In addition to this independent evidence linking Rankin to
the abuse, Evans relied on Amber’s statements to both her mother
and the police in determining that probable cause existed to
The Rankins also contend that Evans knew that Amber and her
family had just moved, that she had been repeatedly moved to new
preschools, and that her mother had been paying a lot of
attention to Amber’s younger brother because of his severe
illness. They argue that -- knowing about those family
circumstances -- a cautious officer would not have given
significant weight to any behavioral changes. However, we
conclude that a cautious officer reasonably could have believed,
in light of the knowledge that Amber had frequently moved to new
preschools and that her brother’s health problems were apparently
chronic, that Amber had faced such strains before and that her
mother was presumably aware of her child’s typical reactions to
such ongoing problems. Dr. Brake, however, had nonetheless
concluded that Amber’s behavior was unusual and reported that
conclusion to Evans. A reasonable officer acting cautiously
could have given significant weight to her evaluation of her
child’s behavior.
36
arrest Rankin. As noted above, the essential question regarding
Amber’s statements is whether they were sufficiently reliable and
trustworthy to support a determination of probable cause. We
conclude as a matter of law that a prudent person reasonably
could have believed that the fundamental information provided by
Amber’s statements was sufficiently reliable and trustworthy to
consider in determining the existence of probable cause.
Generally, an officer is entitled to rely on a victim’s
criminal complaint as support for probable cause. See Singer v.
Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995), cert.
denied, 116 S. Ct. 1676 (1996). The Rankins assert that Evans
was not entitled to so rely here because the victim’s age and
inconsistencies rendered her statements unreliable. We conclude
that, although a child victim’s statements must be evaluated in
light of her age, Amber’s statements -- considered along with the
other supporting evidence -- were sufficiently reliable and
trustworthy at their core to form the basis for probable cause to
arrest Rankin. See Marx, 905 F.2d at 1506 (indicating that,
although a four-year-old’s age affected the weight due her
statements, the arresting officer could not simply disregard her
statements in determining whether probable cause existed); Myers
v. Morris, 810 F.2d 1437, 1456-57 (8th Cir.), cert. denied, 108
S. Ct. 97 (1987); Easton, 776 F.2d at 1450-51.
Next, we address the Rankins’ contention that Amber never
explicitly stated that Rankin or Mr. Doug abused her. Instead,
they note that she merely referred to her abuser as Ba Ba Blue.
37
However, they do not dispute that Evans knew at the time of
Rankin’s arrest that Rankin was referred to by the children as
Baba Loo. They also do not contest that Amber in particular
called Rankin Ba Ba Blue, which was her pronunciation of Baba
Loo. Amber identified Ba Ba Blue as the culprit in both her
first statement regarding the abuse made to her mother and the
subsequent audiotaped statement. Dr. Brake told Evans that Amber
also had identified her alleged abuser as Ba Ba Blue to Dr.
Drummond. Furthermore, in the videotaped interview of Amber, she
ultimately responded “Ba Ba Blue” to questions regarding the
identity of her abuser.20 In addition, Amber consistently
referred to her abuser as “he,” indicating that the offending
individual was a male. As noted above, the only people beside
20
The Rankins assert that the videotaped statement in
which Amber identified “Ba Ba Blue” as her abuser demonstrates
the unreliability of her statements because she initially
answered “Donald Duck” and “Pluto” in response to the question of
who did the things to her which she described. The Rankins
assert that her identification of two cartoon characters as the
abusers, followed immediately by her identification of Ba Ba Blue
as her abuser, precluded Evans from relying on her statements for
probable cause to arrest Rankin. However, a prudent officer
reasonably could conclude that Amber was merely playing when she
answered “Donald Duck” and “Pluto,” but was being serious when
she ultimately responded Ba Ba Blue because: (1) she had
repeatedly identified Ba Ba Blue as the abuser in past statements
and had never before mentioned the first two characters; (2) she
actually knew someone who was referred to as Ba Ba Blue, unlike
the other characters; (3) she repeatedly referred to the person
who abused her as “he” and the person referred to as Ba Ba Blue
was a male; and (4) other corroborating evidence was consistent
with abuse by the individual identified as Ba Ba Blue. Thus, a
cautious officer reasonably could have concluded that Amber, when
referring to Ba Ba Blue, was referring to a real person as
opposed to a cartoon character. In light of the other evidence,
such an officer also reasonably could have concluded that Rankin
was Ba Ba Blue.
38
Amber’s mother who appeared to have access to her were the staff
at Sugar Plum. In addition, Amber indicated that all of her
teachers were female, suggesting that Rankin was the only male at
Sugar Plum (a fact which Rankin subsequently conceded during
questioning). Accordingly, we conclude that Amber’s statements
provided sufficient information for a cautious person reasonably
to believe that Amber was abused by someone called Ba Ba Blue,
and that other evidence indicated that Ba Ba Blue was Rankin.
The Rankins also assert that inconsistencies in Amber’s
videotaped statement indicated that her statements as a whole
were unreliable. For instance, they note that when Amber was
questioned regarding the timing of any abusive incidents, she
stated that she had been abused “today” -- the date of the
interview -- but not on the day before, the date on which she
reported the incidents to her mother and on which Dr. Brake told
Evans that Amber had indicated the abuse had occurred.21
However, an officer as seasoned in the field of child abuse as
Deputy Evans reasonably could have discounted Amber’s statements
regarding the timing of the abuse because of the fact that young
children do not have a particularly strong grasp of the concept
of time, although they are able to articulate more concrete
concepts such as events that have occurred or things that have
21
The Rankins also note the varying times which Amber gave
Dr. Drummond for the dates of the abuse as evidence that Evans
should not have relied on Amber’s statements. The Rankins,
however, have pointed to no evidence indicating that Dr. Drummond
relayed that information to Evans.
39
happened to them.22
The Rankins also point to several other comments by Amber
which they assert fatally undermine the reliability of her
statements.23 Although we acknowledge that a stronger statement
by the victim would be preferable prior to arrest, we cannot
conclude that a prudent officer could not have reasonably relied
on the fundamental allegation consistently made by Amber: that a
male named Ba Ba Blue made a hole in her bottom at school.24 She
made statements to this effect on at least four separate
occasions of which Evans was aware: to her mother, to Dr.
Drummond, on audiotape, and to him during the videotaped
22
For example, Dr. Drummond testified that, in his
experience, children who were unable to fully grasp temporal
concepts were able accurately to describe more concrete events
such as physical pain. A police officer such as Evans, with
formal training and extensive practical experience in child abuse
cases, would be aware of children’s difficulties with time, and
reasonably could have discounted those inconsistencies.
23
For instance, they note that Amber stated in the
videotaped interview that Dr. Drummond stuck a thermometer in her
bottom and that the testimony at trial showed that he did not do
so. However, the Rankins point to no evidence indicating that
Evans knew or should have known of this inconsistency at the time
of the arrest.
24
The Rankins assert that Amber’s assertion that the
abuser had stuck a finger in her bottom undercut the reliability
of her statement regarding the abuse because it was inconsistent
with the medical evidence which showed vaginal penetration, but
no anal contact. However, we note that, in the videotaped
interview, Amber referred to her genitals as her bottom. We also
note that it is not surprising that a three-year old would not
have separate words for her vagina and bottom. Accordingly, a
reasonable officer could conclude that Amber intended to refer to
her vagina.
40
interview.25 In light of the medical evidence supporting the
conclusion that abuse had occurred, Dr. Brake’s observations
regarding Amber’s behavioral changes, and her statements
regarding the limited number of people who had access to Amber
during the relevant time period, we conclude that Evans properly
relied on Amber’s statements in establishing the existence of
probable cause to arrest Rankin.26 See Marx, 905 F.2d at 1506;
Myers, 810 F.2d at 1456-57.
Conclusion
In sum, we conclude that the trial court was not
procedurally barred by Federal Rule of Civil Procedure 50 from
granting a JNOV in favor of defendants on the ground that
probable cause existed. Although we note with regret the
undoubted hardship caused to plaintiffs by Doug Rankin’s arrest
and detention, especially in light of his subsequent complete
25
Defendants assert that Amber also made such statements
to Officer Honholz and Dr. Decharme. Plaintiffs assert that a
reasonable jury could have concluded that such statements were
never made to these individuals. We conclude that a prudent
officer reasonably could have relied upon Dr. Brake’s assertion
that Amber had made such a statement to Dr. Drummond and on
Officer’s Honholz’s representation to Evans and Dr. Brake that
Amber had made such a statement to him in evaluating the
existence of probable cause. However, even disregarding these
additional statements, probable cause existed as a matter of law.
26
We note that under Fla. Stat. 794.022(1) (West Supp.
1990), “[t]he testimony of the victim need not be corroborated in
a prosecution under s. 794.011 [commission of a sexual battery of
a child under twelve].” However, we do not need to address the
question of how this statutory section would apply when the
victim is a young child and the statement is merely being used to
establish probable cause, rather than as the sole basis for a
conviction, because Evans had evidence in addition to Amber’s
statements which incriminated Rankin at the time of arrest.
41
exoneration by the grand jury, we conclude that the district
court correctly determined that probable cause existed as a
matter of law. Accordingly, we affirm the district court’s grant
of a JNOV in favor of defendants and dismiss the cross-appeal as
moot.
AFFIRMED.
42